Supreme Court poised to allow Trump to remain on Colorado ballot – The Washington Post
The Supreme Court on Thursday seemed poised to allow former president Donald Trump to remain on the Colorado ballot, expressing deep concerns about permitting a single state to disqualify the leading Republican candidate from seeking national office.
Justices from across the ideological spectrum warned of troubling political ramifications if they do not reverse a ruling from Colorado’s top court that ordered Trump off the ballot after finding that he engaged in insurrection around the Jan. 6, 2021, assault on the U.S. Capitol.
The court was considering the unprecedented and consequential question of whether a state court can enforce a rarely invoked, post-Civil War provision of the Constitution to disqualify Trump from returning to the White House.
During more than two hours of argument, the justices asked questions that suggested their often divided bench could reach a unanimous or near-unanimous decision to reject the challenge to Trump’s eligibility brought by six Colorado voters. Not since the court’s 2000 ruling in Bush v. Gore, which focused on ballot-counting and sealed the election for President George W. Bush, has the Supreme Court been thrust into such a pivotal role in a presidential election.
Liberal Justice Elena Kagan repeatedly questioned whether one state should be allowed to decide whether a presidential candidate is disqualified. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?” she asked, adding, “That seems quite extraordinary, doesn’t it?”
Conservative Justice Amy Coney Barrett agreed, adding that “it just doesn’t seem like a state call.”
Trump is quickly closing in on the GOP nomination, and several justices suggested that a state court ruling initiated by voters in one state to bar him from federal office would throw the presidential race into extreme disarray.
Chief Justice John G. Roberts Jr. predicted that a number of other states would quickly try to disqualify the leading Democratic candidate if the justices allowed the Colorado decision to stand. He called the prospect of a handful of states deciding the presidential election a “pretty daunting consequence.”
Justice Brett M. Kavanaugh worried about disenfranchising voters if the court removed Trump from the ballot. “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” he asked.
In response, attorney Jason Murray, representing the Colorado voters, said, “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.”
Derek Muller, a University of Notre Dame law professor who has been closely following the case, said Thursday’s arguments showed both liberals and conservatives on the court are “uncomfortable with the notion that it was going to be the decider here.”
“The court does not want to be in the business of cleaning up ballot access disputes for presidential candidates in perpetuity,” Muller said.
Unlike the divided ruling in Bush v. Gore, which polarized the nation, Muller said a unanimous or close to unanimous decision might be more widely accepted by the public.
“Maybe it’ll be more palatable to people to say, ‘Listen, we really expect the political process to solve this, rather than expecting litigation to answer the question.’”
The Supreme Court fast-tracked the case and could announce a decision at any time. Its opinion is expected to resolve the issue of Trump’s eligibility in other states where people have brought similar challenges.
Colorado’s top court put its December ruling on hold while the litigation continues. Trump’s name will appear on the state’s already printed March 5 primary ballot.
The legal questions at issue involve Section 3 of the 14th Amendment, which prohibits anyone who previously pledged to support the Constitution as “an officer of the United States” from returning to office if they betrayed their oath by engaging in insurrection.
The challenge to Trump’s candidacy was brought by six Colorado voters — four Republicans and two independents. After a five-day trial, a lower court judge in November concluded that Trump engaged in insurrection when he summoned his supporters to Washington and encouraged an angry crowd to disrupt Congress’s certification of President Biden’s 2020 victory. But the judge also found that Section 3 did not apply to the presidency.
A divided Colorado Supreme Court disagreed and barred Trump from the ballot, prompting his appeal to the Supreme Court. Maine’s secretary of state reached the same conclusion, but her decision is also on hold.
Much of the discussion Thursday centered on differing interpretations of the text and history of the 14th Amendment provision, also known as the disqualification clause, which was initially intended to stop former Confederates from returning to power after the Civil War.
Conservative Justice Clarence Thomas and liberal Justice Ketanji Brown Jackson — who have clashed on the most divisive issues before the court — both expressed deep skepticism of the Colorado voters’ view of the scope of the 14th Amendment. They agreed with Roberts’s assessment that the post-Civil War amendment was aimed at limiting the power of the states.
And yet, Roberts said, the Colorado voters seeking to remove Trump from the ballot appear to be trying to use the same amendment to say states have the power to prevent candidates from running for nationwide office.
“That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” Roberts said.
The text of Section 3 does not specify who is supposed to enforce the clause or when it should be invoked.
If the court allows Trump to remain on the ballot and he wins, the questions about whether he is eligible to serve as president could come roaring back, warned Murray, the attorney for the Colorado voters.
“I think it could come back with a vengeance because ultimately members of Congress may have to make the determination — after a presidential election if President Trump wins — about whether or not he’s disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act,” Murray said.
A majority of justices seemed ready to embrace the argument of Trump’s attorney, Jonathan Mitchell, who said enforcement of the disqualification clause is up to Congress, not state courts or officials. In addition, Mitchell said Section 3 does not apply to Trump because the president is not an “officer of the United States,” which is one of the terms the section uses when discussing potential insurrectionists.
Jackson seemed to share his doubts about whether Section 3 applies to former presidents because it is not one of the government positions specifically listed in the text.
“You have a list and president is not on it,” she emphasized.
Kagan, however, pressed Mitchell about why the framers would have left out the highest office in the land. What reason would they have had, she asked, for saying an insurrectionist cannot hold the “whole panoply of offices in the United States, but we’re perfectly fine with that insurrectionist being president?”
Mitchell acknowledged that it “does seem odd that President Trump would fall through the cracks,” but said the text represents a compromise. He insisted “officer” means an appointed official, not the elected president.
When it was his turn at the lectern, Murray, the voters’ lead attorney, urged the justices not to create a “special exemption” from the disqualification clause for Trump.
There were reminders throughout the argument about how much the nation’s political and civic landscape has changed in recent years with increasingly frequent impeachment proceedings in Congress and unprecedented efforts to subvert the 2020 election results.
Murray noted that Section 3 has rarely been invoked in modern times: “There’s a reason Section 3 has been dormant for 150 years, and it’s because we haven’t seen anything like January 6th since Reconstruction.”
Alito said in response that the past could not predict the future, noting that there were no impeachments of presidents for more than 100 years and “in fairly short order over the last couple of decades, we’ve had three.”
The justices, however, did not spend much time focused on the question of whether Trump engaged in insurrection — a topic that has deeply divided Democrats and Republicans.
The primary mention of that issue came when Jackson asked Trump’s lawyer why the violent attempt to stop Congress’s certification of the electoral vote count on Jan. 6 did not amount to an insurrection.
Mitchell answered by characterizing the attack as a “riot” and said there had not been an “organized, concerted effort to overthrow the government.”
“The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection,” Mitchell said.
Trump did not attend Thursday’s argument, though he has shown up in court recently for other legal cases he is involved in. But he said he followed the hearing from Mar-a-Lago, his Florida home and private club. In remarks to reporters afterward, Trump defended his words and the actions of his supporters on Jan. 6.
In the three years since the attack on the Capitol, the former president has steadily escalated his glorification of the rioters, including some who have been convicted of assaulting police. He also has spread misinformation and conspiracy theories about the deadly violence.
Trump on Thursday repeated the falsehood that “there were no guns” on Jan. 6 even though court records, trial testimony and accounts from police officers and rioters have shown that multiple people brought firearms to the area between the White House and the Capitol, and six men were arrested that day for having guns in the vicinity of the Capitol.
He also attempted to shift blame for the assault to then-Speaker Nancy Pelosi. “I think it was an insurrection caused by Nancy Pelosi,” he said. Trump has in the past falsely accused Pelosi of being responsible for Capitol security and claimed he offered National Guard troops, an assertion contradicted by other officials.
There were reminders in court Thursday that the former president’s eligibility to return to office is not the only question before the justices that could affect Trump’s political future.
When Kavanaugh tried to get his lawyer to acknowledge that a candidate could be disqualified from office if prosecuted and convicted of insurrection, Mitchell agreed. But, he added, his client is arguing he has presidential immunity and would not concede he could be prosecuted for his conduct around Jan. 6.
Trump is expected to ask the Supreme Court by Monday to reverse a ruling this week from the U.S. Court of Appeals for the D.C. Circuit that said he is not protected by presidential immunity from being prosecuted for trying to block Biden’s 2020 victory.
The justices separately have said they will review the validity of a law that was used to charge hundreds of people in connection with the Jan. 6 riot and is also a key element of Trump’s four-count federal election obstruction case in Washington.
In a sign of the significance of the case before the high court on Thursday, the courtroom was filled with many guests of the justices, high-profile visitors and dozens of journalists. Among those in attendance was Rep. Jamie Raskin (D-Md.), who helped lead impeachment proceedings against Trump.
Trump told reporters at Mar-a-Lago that the argument was “a beautiful thing to watch, in many respects.”
“I thought the presentation today was a very good one,” he said. “I think it was well received. I hope it was well received.”
Isaac Arnsdorf, Rachel Weiner and Amy B Wang contributed to this report.
The latest: The Supreme Court seemed poised to allow former president Donald Trump to remain on the Colorado ballot, expressing deep concerns about permitting a single state to disqualify the leading Republican candidate. Here are some takeaways from the oral arguments.
Colorado Trump ballot case: In a historic decision, the Colorado Supreme Court barred Trump from running in the state’s presidential primary after determining that he had engaged in insurrection on Jan. 6, 2021. Read the full text of the Colorado ruling and takeaways.
Other challenges: Efforts to remove Trump from the ballot have been launched nationwide. Here are the states where his ballot status is being challenged and how those efforts have fared.
The 14th Amendment: Here’s what the 14th Amendment says about whether Trump can be on the ballot.